UNITED STATES, Appellee 

v. 

Eddie J. ROGERS, Technical Sergeant 

U.S. Air Force, Appellant 

No. 08-0518 

Crim. App. No. 36768 

United States Court of Appeals for the Armed Forces 

Argued December 3, 2008 

Decided January 22, 2009 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Captain Lance J. Wood (argued); Major Shannon A. 

Bennett (on brief); Lieutenant Colonel Mark R. Strickland. 

For Appellee: Captain G. Matt Osborn (argued); Colonel Gerald 

R. Bruce and Captain Ryan N. Hoback (on brief); Major Donna 

Rueppell. 

Military Judge: Donald Plude 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Rogers, No. 08-0518/AF 

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Judge BAKER delivered the opinion of the Court. 

A court-martial composed of members convicted Appellant, 

contrary to his pleas, of wrongfully using cocaine on divers 

occasions, in violation of Article 112a, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 912a (2000). The adjudged 

and approved sentence consisted of six months confinement, a bad 

conduct discharge, and reduction to E-4. The United States Air 

Force Court of Criminal Appeals affirmed after modifying the 

findings and reassessing the sentence. United States v. Rogers, 

No. ACM 36768, 2008 CCA LEXIS 64 at *9, 2008 WL 514227 at *3 

(A.F. Ct. Crim. App. Feb. 27, 2008). We granted review of the 

following issue: 

WHETHER THE MILITARY JUDGE ERRED IN DENYING 

APPELLANT’S MOTION TO SUPPRESS HIS HAIR TEST RESULTS. 

The question presented is whether probable cause existed to 

issue the search authorization. For the following reasons, we 

affirm. 

FACTS 

 In his Findings and Conclusions re: Defense Motion to 

Suppress Seizure of Hair (Jan. 31, 2006) (Findings/Conclusions), 

the military judge made the following findings of fact, in 

relevant part: 

2. On 28 Apr 05, a document turned up missing in the 

Command Support Section of the 29th Intelligence 

Squadron. . . . When SrA [T] called the accused later 
United States v. Rogers, No. 08-0518/AF 

3

that morning, he told her to come to his house because 

he wanted to talk to her. 

3. SrA [T] arrived at the accused’s off-base home 

around 1310 hours on 28 Apr. After discussing the 

missing document for a while, SrA [T] alleges the 

accused offered her cocaine, used cocaine himself, 

offered her money for sexual intercourse, grabbed her 

hand and rubbed it on his penis, and exposed his penis 

to her . . . . 

4. Sometime after returning to her office, SrA [T] 

talked to SSgt McElvaine about what happened at the 

accused’s house. . . . 

5. . . . [O]n 28 Apr, SrA [T]’s first sergeant called 

Special Agent Brian McPherson and informed him of SrA 

[T]’s allegations against the accused, including the 

drug allegations. Agent McPherson interviewed SrA [T] 

the following morning [on 29 Apr]. Following that 

interview, SrA [T] prepared and signed under oath a 5-

page statement regarding the events of 28 Apr 05. In 

the statement . . ., she stated she saw the accused 

snort three lines of white powder . . . . About five 

minutes after using the powder, she said the accused 

started sweating and talking more rapidly and became 

sexually aggressive toward her. She also told Agent 

McPherson the accused . . . informed her he got in 

trouble at his last base for drug use but got out of 

it . . . . SrA [T] also said the accused told her he 

wasn’t worried about a urinalysis because he took a 

special drink to clean out his system. 

6. Since SrA [T] was alleging she was the victim of 

an indecent assault, Agent McPherson treated her as a 

victim, consistent with OSI policy, rather than as an 

informant and accepted what she told him as true. . . 

. Based on everything he knew about the case, Agent 

McPherson believed SrA [T]’s account of what occurred 

at the accused’s house was credible. 

7. . . . Agent McPherson interviewed the accused 

under rights advisement on 2 May. The accused waived 

his rights and made a written statement in which he 

denied SrA [T]’s allegations. The accused also agreed 

to provide a urine sample for drug testing . . . . On 
United States v. Rogers, No. 08-0518/AF 

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17 May 05, word was received that the accused’s urine 

sample tested negative for cocaine. 

8. . . . In discussing the matter with [Special] 

Agent [Jeremy] Gage[, OSI’s Forensic Science 

Consultant], Agent McPherson told him everything he 

knew about the case. Agent Gage told him the chances 

of finding traces of cocaine in the accused’s hair was 

likely if the accused was a chronic user and if he 

consumed a considerable amount of the drug. . . . 

Agent Gage advised [Agent] McPherson that he believed 

there was probable cause for doing a hair analysis. 

9. On 13 Jun, Agent McPherson discussed whether there 

was probable cause for a hair analysis with Capt 

Sheila Stoffel, Staff Judge Advocate for the 70th 

Intelligence Wing. She opined there was. Thereafter, 

Agent McPherson prepared an affidavit to present to a 

military magistrate to obtain a search authorization 

for the hair analysis. This was the first time Agent 

McPherson had been involved in obtaining a search 

authorization. Consequently, he prepared the 

affidavit . . . with the assistance of the OSI 

detachment’s OIC . . . . However, neither ran the 

finished affidavit by the legal office . . . . 

10. Col Wayne McCoy, the 70th Operations Group 

commander, was the military magistrate who approved 

the search authorization at issue. Agent McPherson 

met with him on 20 Jun 05 and gave him the affidavit . 

. . after being sworn to it. The affidavit didn’t 

include some important information that was then known 

by Agent McPherson. Specifically, it didn’t note that 

a court-martial at Maxwell AFB had acquitted the 

accused in Apr 04 of using cocaine; nor did it mention 

that the accused gave a urine sample on 2 May 05 that 

later tested negative for cocaine and that he denied 

the allegations made by SrA [T]. However, Agent 

McPherson testified that he orally discussed all these 

matters with Col McCoy. Col McCoy testified that 

Agent McPherson orally summarized the affidavit and he 

asked the agent about the Maxwell urinalysis and some 

other questions, but he recalls few other specifics of 

what they discussed. Although the defense has sought 

to attack the credibility of Agent McPherson, the 

Court finds his testimony credible and finds that he 
United States v. Rogers, No. 08-0518/AF 

5

orally informed Col McCoy of the previously noted 

details that were missing from the affidavit. 

11. . . . Col McCoy had a general knowledge of hair 

testing from some scientific reading he did on the 

subject in the late 1980s. Specifically, he knew that 

the military was pursuing other scientific means for 

testing for drugs and that hair and fingernails were 

believed to retain evidence of drug use for a much 

longer period of time than urine. 

12. Although Col McCoy didn’t have any information on 

the background or qualifications of Agent Gage, he was 

aware that OSI agents assigned as forensic science 

consultants are considered as experts on . . . DNA and 

hair testing. Consequently, he gave Agent Gage’s 

opinion . . . a lot of weight. 

13. At the end of the meeting with Agent McPherson on 

20 Jun 05, Col McCoy signed a written authorization to 

take body hair from the accused for drug testing. On 

21 Jun 05, . . . a technician . . . cut pieces of hair 

from under the accused’s armpits. On 28 Jun 05, that 

hair was sent to a laboratory . . . for drug testing. 

Subsequent tests of the accused’s hair indicated the 

presence of cocaine. 

Appellant argues that probable cause did not exist because 

the affidavit was inadequate, Senior Airman (SrA) T’s veracity 

went unchecked, and Colonel (Col) McCoy acted as a rubber stamp 

magistrate. In addition, at oral argument Appellant attacked 

the credibility of Agent McPherson by emphasizing Col McCoy’s 

testimony that he believed that Agent McPherson held the rank of 

major because “[h]e told me he was a [m]ajor.”1

 Based on this 

 

1 The exchange between defense counsel and Col McCoy proceeded as 

follows: 
United States v. Rogers, No. 08-0518/AF 

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statement, Appellant argues that the affidavit as a whole is 

incredible and the military judge abused his discretion in 

finding that the totality of the circumstances supported 

probable cause. 

ANALYSIS 

 A military judge reviews a magistrate’s decision to issue a 

search authorization to determine whether the magistrate had a 

substantial basis for concluding that probable cause existed. 

United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005). A 

magistrate has a substantial basis to issue a warrant when, 

based on the totality of the circumstances, a common-sense 

judgment would lead to the conclusion that there is a fair 

probability that evidence of a crime will be found at the 

identified location. Illinois v. Gates, 462 U.S. 213, 238 

(1983); United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 

 

[Defense Counsel]: Now when you met with Agent 

McPherson, what was your understanding of his position 

at the detachment? 

[Col McCoy]: That he was the commander of the OSI 

detachment. 

[Defense Counsel]: And what was your impression of 

his rank then? 

[Col McCoy]: He’s a Major. He told me he was a 

Major. 

[Defense Counsel]: He did at the time he met with 

you? 

[Col McCoy]: Yes. 
United States v. Rogers, No. 08-0518/AF 

7

2007). In light of the constitutional preference for warrants, 

substantial deference is afforded in cases where a magistrate 

determines that probable cause exists. Gates, 462 U.S. at 237. 

We review a military judge’s ruling on a motion to suppress 

for an abuse of discretion. United States v. Ayala, 43 M.J. 

296, 298 (C.A.A.F. 1995). An abuse of discretion exists if the 

military judge found clearly erroneous facts or misapprehended 

the law. Leedy, 65 M.J. at 213. Further, we review the facts 

in the light most favorable to the prevailing party below. Id.

On the one hand, the magistrate had access to a litany of 

facts that could support a finding of probable cause. First, 

there is the statement of SrA T, as reported in the affidavit. 

SrA T informed the Office of Special Investigations (OSI) that 

she witnessed Appellant engage in criminal conduct in his own 

residence. Among other things, SrA T stated, as quoted in the 

affidavit, that “[s]he witnessed [Appellant] inhale the ‘lines’ 

of ‘powder’ through his nose” and Appellant “also informed [SrA 

T that] he got in trouble for drug use at his last assignment 

but got out of it.” Notably, the amount of cocaine in question 

was suggestive of frequent or binge use. As to SrA T’s 

credibility, OSI viewed SrA T as both a witness and a victim; in 

such a case, OSI policy infers the truth of the allegations. 

Further, there is evidence in the affidavit supporting the 

veracity and basis of knowledge of SrA T’s statements. Bethea, 
United States v. Rogers, No. 08-0518/AF 

8

61 M.J. at 187. SrA T was not an informant, but a witness, and 

therefore the Government carried no burden to demonstrate her 

reliability beyond that generally required of any witness. 

United States v. Martinelli, 454 F.3d 1300, 1307 (11th Cir. 

2006); 2 Wayne R. LaFave, Search and Seizure § 3.4(a), at 225 

(4th ed. 2004). In any event, corroboration of SrA T’s veracity 

exists. For example, SrA T was aware of Appellant’s 2004 courtmartial charges and she described a scar on Appellant’s stomach, 

neither of which were a matter of general knowledge within the 

squadron.2 SrA T’s knowledge of these personal matters were 

corroborated before submission of the affidavit, tending to 

demonstrate SrA T’s veracity. Moreover, SrA T made these 

statements in person. OSI agents therefore had the opportunity 

to evaluate her credibility firsthand. The affidavit further 

supported the veracity of SrA T’s statements by acknowledging 

 

2 Agent McPherson had the following exchange with trial counsel: 

[Agent McPherson]: . . . [SrA T] was able to identify 

certain features about the accused. 

[Trial Counsel]: Such as? 

[Agent McPherson]: Such as -- such as him getting in 

trouble at Maxwell for a similar situation. Such as, 

him having a scar on his stomach that he received from 

surgery. When I spoke with the accused he -- when 

asked about distinguishing marks, features on his 

body, he said, “Yes I do have a scar on my stomach” 

that he obtained from surgery. 
United States v. Rogers, No. 08-0518/AF 

9

that she promptly reported the incident to her chain of command 

and that her statements remained consistent. 

 Second, Agent McPherson briefed Col McCoy for about twentyfive to thirty minutes, and although Col McCoy had a poor 

recollection of the details, he remembered discussing the case 

with Agent McPherson. Third, an OSI forensic science consultant 

confirmed that Appellant’s hair would likely reveal traces of 

cocaine “if he is a chronic user, and if he consumed a 

considerable amount” of cocaine. Finally, the magistrate had 

personal knowledge of drug testing techniques and analysis from 

his time at Goodfellow Air Force Base. 

 On the other hand, circumstances exist in this case that 

could undercut a finding of probable cause. First, the 

affidavit presented to the magistrate did not include all 

potentially relevant facts. Specifically, the affidavit failed 

to include facts indicating that: Appellant was SrA T’s 

supervisor; Appellant had previously disciplined SrA T; SrA T 

could have motive to lie; Appellant offered to take a urinalysis 

and this test came back negative; Appellant denied SrA T’s 

allegations; and this was Agent McPherson’s first affidavit. 

The affidavit also omitted any discussion of the science 

surrounding hair testing and that hair testing could be used to 

prove binge use. Second, the affidavit arguably did not 
United States v. Rogers, No. 08-0518/AF 

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sufficiently link Appellant’s alleged crime with the assertion 

that evidence of that crime would be found in Appellant’s hair. 

Based on the totality of circumstances, we conclude that 

the military judge did not abuse his discretion in upholding the 

search authorization in this case. To the extent this case 

presents a close call, we note that “‘[c]lose calls [are to] be 

resolved in favor of sustaining the magistrate’s decision.’” 

United States v. Monroe, 52 M.J. 326, 331 (C.A.A.F. 2000) 

(citation omitted). While the affidavit could have included the 

information identified above, the affidavit contained enough 

evidence to establish probable cause to seize Appellant’s body 

hair. Most notably, the affidavit detailed SrA T’s statements, 

as a victim and witness, regarding her encounter with Appellant 

at his home. Further, Agent McPherson briefed the magistrate on 

some, if not all, of the information omitted from the affidavit. 

In light of the record and uncertain recollections of the 

actors, the military judge did not erroneously conclude that Col 

McCoy knew about Appellant’s previous acquittal in April 2004, 

that Appellant denied SrA T’s allegations, and that Appellant’s 

most recent urine sample had tested negative. 

Findings/Conclusions para. 10. 

Moreover, based on the record as a whole, the military 

judge’s conclusion that Agent McPherson did not “attempt . . . 

to knowingly or intentionally mislead the magistrate” is not 
United States v. Rogers, No. 08-0518/AF 

11

clearly erroneous. Id. at para. 18. At oral argument, 

Appellant drew attention to Col McCoy’s testimony that “[Agent 

McPherson] told [Col McCoy] he was a Major.” If indeed Agent 

McPherson impersonated an officer, it would, among other things, 

undercut the credibility of his affidavit. However, in our 

view, and the view of the military judge, the record is not as 

clear cut as Appellant argues. First, SrA T’s statements, as 

conveyed to multiple witnesses, are granular and credible, 

independent of what Agent McPherson did or did not say to Col 

McCoy about his military grade. Second, the record as a whole 

reflects that Col McCoy and Agent McPherson had uncertain and 

differing recollections as to what was said during an initial 

introductory meeting and the June 20, 2005, session. In fact, 

the defense counsel never asked Agent McPherson whether he 

recalled telling Col McCoy his pay grade, while the affidavit 

correctly identified Agent McPherson as a “Special Agent” in the 

Air Force OSI. On this record, a military judge might well 

conclude that Col McCoy’s testimony was the product of differing 

and failing recollections. Moreover, the military judge, having 

observed the witnesses in this case, found that Agent McPherson 

was credible and this conclusion is not clearly erroneous. 

Finally, a sufficient nexus existed between the alleged 

crime and the seizure of Appellant’s hair. Col McCoy relied on 

his “general knowledge of hair testing” and knew that “the 
United States v. Rogers, No. 08-0518/AF 

12

detection time of drugs in the body is somewhat limited.” 

Findings/Conclusions paras. 11, 18; see also Military Rule Of 

Evidence (M.R.E.) 315(f)(2)(C) (a probable cause determination 

can be based on “[s]uch information as may be known by the 

authorizing official”). Col McCoy also considered the advice of 

the OSI forensic science consultant who possessed knowledge of 

hair analysis. Findings/Conclusions para. 12. As such, 

sufficient facts existed “to support a reasonable belief that 

testing [Appellant’s] body hair would yield evidence of his use 

of cocaine.” Id. at para. 19. 

CONCLUSION 

The military judge did not err in denying Appellant’s 

motion to suppress. The decision of the United States Air Force 

Court of Criminal Appeals is affirmed.